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October 2016 Archives

NJ Senate Bill 992-Important Protections for Women in the Workplace

The N.J. legislature sent Senate Bill 992 to Governor Christie for adoption.  S. 992 amends the N.J. Law Against Discrimination (LAD) making wage disparities amongst similarly situated employees expressly unlawful.  The Bill imposes treble damages upon any employer found to be in violation and further, expands the statute of limitations to restart with every instance, expanding the two (2) year statute of limitations established by the federal Lily Ledbetter Law.   While the federal Equal Pay Act also provides for these protections, it does not expand the statute of limitations or provide the other protections that S. 992 does.
S. 992 also protects employees from retaliation if they disclose their pay levels to other employees and specifically makes it unlawful to require employees to sign a document shortening the statute of limitations for LAD and equal pay claims or to waive the protections of the Law Against Discrimination as a condition of their employment.
Gov. Christie vetoed S. 992 on May 2, 2016 saying that it was not friendly to businesses and that there was no reason to further legislate this issue. NJ.com
It has been 53 years since the passage of the Equal Pay Act and White women are still only making $0.70-$0.80 for every dollar earned by a White male.  African American and Hispanic women make even less.  There is also a clear pay disparity between wages earned by White men and Hispanic or African American men.  See article in NJ.com.  The Bill sponsored by Sen. Loretta Weinberg (D-Bergen) provided the much needed teeth to this law to "encourage" companies to do the right thing and pay their women and minority employees fairly.
S. 992 is finally THE LAW that will make businesses do the right thing where the current law and society has failed to convince them of the virtues of equal pay for all of their workers.
Gov. Christie's veto can be overturned by a vote of 2/3rds of the legislature.
So, for yourself, and your mothers, sisters and daughters, its time to speak up!
Contact your legislator to encourage them to override this veto.

NEW EEO EMPLOYER FORMS

The EEOC is amending its EEO-1 form (the Employer Information Report) to include questions about pay ranges and hours worked by employees.  This data will reveal patterns or trends in pay disparities.   The current EEO-1 Form provides information on workforce profiles such as race, gender, ethnicity and job category but doesn't seek information on pay ranges or hours worked.  The new EEO-1 Form will go into effect in September 2017. EEOC Press Release (1/29/2016)
This tracking mechanism together with the proposed changes in the N.J. Law Against Discrimination (LAD) are represent giant strides towards eliminating gender pay disparities in the workplace.  The proposed changes to the LAD as vetoed by Gov. Christie are slowly being made the law by the New Jersey Supreme Court.
On June 15, 2016, the NJ Supreme Court ruled that it is unlawful for an employer to require an employee to agree to a shortened statute of limitations period in an employment agreement.  Rodriguez v. Raymours Furniture.  This was one of the changes proposed in Senate Bill 992 vetoed by Gov. Christie.  S. 992 also protects employees from retaliation if they disclose their pay levels to other employees and specifically makes it unlawful to require employees to sign a document shortening the statute of limitations for LAD and equal pay claims or to waive the protections of the Law Against Discrimination as a condition of their employment.  Hopefully the NJ Supreme Court will rule in accordance with these proposed changes establishing precedent where the Governor wouldn't make new law.
Irrespective of the mechanism, the current federal and NJ trend is to pay special attention to the gender pay disparities.  EEOC Chair Jenny R. Yang said "More than 50 years after pay discrimination became illegal it remains a persistent problem for too many Americans.  Collecting data is a significant step forward in addressing discriminatory pay practices.  This information will assist employers in evaluating their pay practices to prevent pay discrimination and strengthen enforcement of our federal anti-discrimination laws."
It is imperative that NJ businesses begin to analyze their own statistics now to avoid enforcement penalties down the line.

Lessons Learned From Carlson v. Ailes

On July 6, 2016, Gretchen Carlson filed suit against Roger Ailes for severe and pervasive sexual harassment suffered while working at Fox News.  Roger Ailes resigned in July 2016, and Carlson's case settled in September 2016 with Fox News' parent company paying her $20,000,000.
The Complaint provides the sordid details of what Carlson says she suffered while working for Ailes.  Since the case settled before any real litigation took place, we can only assume that Ailes and his attorney would have cleverly denied that any of these events took place and that there were "legitimate business reasons" for the changes in Carlson's schedule, lack of prime job assignments and other retaliatory actions alleged by her.
Carlson got lucky because the price tag to Fox News in settling was lower than the cost of litigating plus the value of the judgment had Carlson won at trial.

The "he said, she said" type of facts in this Complaint are fairly routine in employment cases, especially those alleging sexual harassment. Very rarely does the offensive harassment take place in front of witnesses. The difference is that the cases don't generally settle this fast or for such high numbers but the high profile nature of the litigants certainly had something to do with it.  A "regular Jane/Joe" employment litigant endures day long depositions, discovery requests, and potentially, a stressful trial.

NON-COMPETE AGREEMENTS

As you start a new job, be alert to non-compete restrictions that your new employer may wish to impose upon you.  Increasingly, employers seem to require their new employees to sign Non-Compete Agreements restraining where they may work if they leave the job.  The idea is to incentivize employees to stay in this job because leaving may mean that they are not allowed to work in their preferred industry for a period of time.  Depending on the type of employer and your specific job, you may be restrained for working in your industry anywhere in the United States for a period of one or two years.  While our courts do not favor non-competes, they will enforce them where they are reasonable in the time period and geography of the restraints. As you think about leaving a job, consider all of the different documents that you have signed when you started the job or during the course of your employment.  You may not realize that "hidden" non-compete's exist in a variety of contexts.  You want to make sure that you are in compliance but also able to earn a living in your chosen profession.  There are a variety of factors that will go into analyzing whether a court will enforce the non-compete as a whole or a particular provision within it.  Examining the circumstances of your employment together with those surrounding the execution of the actual restrictive covenant may reveal unenforceable provisions that allow you to move on to your next job without restriction.

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